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Supreme Court unanimously dismisses appeals by media defendants

Recoverability of CFA success fees and ATE premiums upheld

The Supreme Court has given judgment in the joined appeals brought by the defendants in Gary Flood v Times Newspapers , Frost & others v MGN and Miller v Associated Newspapers.

Each appeal challenged the principle that CFA success fees and ATE premiums were recoverable from a losing party in cases which concerned the Article 10 right of a defendant. The Supreme Court found that it was not appropriate for it to express a view as to whether there is a general rule of domestic law that it would normally infringe a newspaper’s rights under Article 10 to require it to reimburse a claimant’s success fee and ATE premium in a defamation or privacy claim (“the rule”). However, it went on to conclude that even if it had upheld such a rule, the appeals would have failed because to do so would infringe the respondents’ rights under Article 1 of the First Protocol to the Convention. They had incurred financial obligations in reliance on a statute (Access to Justice Act 1999) and they had a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated. Furthermore, to uphold the rule would infringe their Article 6 and 8 rights because they had a right to access to justice in order to restore their personal dignity. In Frost & others v MGN there was an additional point in the respondents’ favour: MGN’s article 10 right, whilst engaged, was nevertheless of minimal force because the information in issue had been obtained illegally by voicemail interception and there could have been no real expectation that its publication would be in the public interest. Therefore the rule, even if applicable, could not be applied in MGN’s favour.

In Flood v Times Newspapers the defendant also appealed against the decision of the trial judge (upheld by the Court of Appeal) that the claimant was prima facie the winner of the claim and therefore ought to receive the costs of it. The Supreme Court found that in deciding whether to depart from the general rule that costs ought to be paid to the winner, the trial judge had been entilted to regard the defendant’s aggressive and unconstructive attitude in correspondence as militating against departure from the rule and to find that the costs relating to that part of the defendant’s Reynolds defence which succeeded would have been incurred even if Mr Flood had conceded that part of the defendant’s case (which further militated in favour of making the costs order in Mr Flood’s favour).

The Supreme Court unanimously rejected the appeals.

Flood v Times Newspapers is one of, perhaps the, most complex and long-running in the history of libel litigation. In addition to the Reynolds and quantum trials, two Court of Appeal and two Supreme Court appeals, there were nine other hearings. The Claim Form and Particulars of Claim were served nearly 10 years ago on 31 May 2007.